An Example of a Soft Law Taxonomy

As consistency in soft law terminology is not optimal throughout treaty body instruments, this section presents a methodology to assist in a clearer understanding of scope and validity of existing soft law in the field of participation rights. The idea is to establish a hierarchy for the key terms used in a given soft law corpus. Thus, as ensuring the strict consistency of wording even among treaty bodies under the common UN umbrella is difficult, as was demonstrated by the soft law developments of FPIC, it seems more helpful to offer a taxonomy based on uniform soft law sources and within a limited group of rights. This taxonomy will give an example of how, within a given area, a soft law vocabulary may be identified and arranged with the aim of furthering a clear and comprehensive understanding of soft law pertaining to a particular set of rights.

The example below deals with one treaty body only, the CESCR, and concentrates on generating a model for linking participation entitlements to ESC rights based on the GCs, as the most general interpretation tools, from that committee. [1] [2]

While such a model cannot claim to be universal or exhaustive, it may be useful to actors in the field of human rights and development.

The Committee monitoring the ICESCR has devoted much effort to strengthening the applicability of the Covenant rights.53 An important method has been the development of General Comments describing ‘obligations and violations’, analytically derived from the words of the Covenant. With this discursive shift from individuals’ rights to states parties’ responsibilities to secure adequate measures, policies, and mechanisms, the Committee endeavoured to recast vague rights as enforceable, adjudicative entitlements. 54

These interpretative efforts of the CESCR have been discussed and contested.55 There is no doubt, however, that the rather detailed descriptions of government obligations provided by the Committee in its GCs have offered new tools for civil society groups, NHRIs, and the media to push governments towards implementation through political mobilization. One recurring recommendation of the Committee is to emphasize the responsibility of states parties to secure participation or consultation with stakeholders.

In its first GC on reporting obligations, the CESCR was already suggesting that relevant groups be included more directly in human rights policy-making. It was recommended that states parties ‘encourage the involvement of the various economic, social and cultural sectors of society in the formulation, implementation and review of the relevant policies’^6 Since then, the requirement that governments cooperate with relevant stakeholders has been expanded in a range of ICESCR General Comments, including, in chronological order, GCs on rights to adequate housing, forced evictions, plans of action for primary education, adequate food, health, water, protection of intellectual interests, the right to work, the right to social security, and most recently the right to take part in cultural life. 57 [3] [4] [5] [6] [7]

  • [1] Tobin (2010): 214-48.
  • [2] 52 A similar finding is presented in a study of the HRC soft law production, Keller and Ulfstein(2012): 146.
  • [3] Saul et al. (2015): 133—73. 54 See the chapter by Matyas Bodig in this volume.
  • [4] 55 See e.g.: Young (2008): 113—75. A critical approach to legal means and remedy as tools to alleviate poverty can be seen in: M. J. Dennis and D. P. Stewart, ‘Justiciability of Economic, Social, andCultural Rights: Should There be an International Complaints Mechanism to Adjudicate the Rightsto Food, Water, Housing, and Health?’, American Journal of International Law vol. 98 (July 2004):
  • [5] 462-515.
  • [6] 56 CESCR GC No. 1 (1989), para. 5.
  • [7] CESCR GC No. 4 (1991) on the right to adequate housing, para. 12; GC No. 7 (1997) on theright to adequate housing: forced evictions, Art. 11(1), paras 13, 15; GC No. 11 (1999) on plans ofaction for primary education, para. 8; GC No. 12 (1999) on the right to adequate food, paras 23 and29; GC No. 14 (2000) on the right to health, paras 11 and 17; GC No. 15 (2002) on the right towater, paras 16(a), 24, 37(f), and 48; GC No. 17 (2005), on the right of everyone to benefit from theprotection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author, Art. 15(1) (NB: Here abridged as ‘intellectual interests’), paras 32, 34,and 46; GC No. 18 (2005) on the right to work, para. 42; GC No. 19 (2008) on the right to socialsecurity, para. 26 (this recommendation differs from the others in that it suggests participation in theadministration of social security schemes, which is neither policy development nor a decision-makingprocess, as in the other GCs); GC No. 21 (2009) on the right of everyone to take part in cultural life,Art. 15, paras 1(a), 16(c), 29, 33, 36, 37, 55(e).
 
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